Vikas Dutta

On April 16, 2019, the Supreme Court in Bharat Broadband Network Limited case (BBNL), dealt with the interpretation of Section 12(5) of the Arbitration and Conciliation Act, 1996 (Act) and host of other related provisions. While doing so, the Supreme Court also analysed three earlier landmark judgments dealing with Impartiality and Independence of Arbitrators.  

We all know, the appointment of Arbitrator is not only starting step in an Arbitration process, but also one of the most crucial step.  This is so because the whole effectiveness of the Arbitration process revolves around the fact of whether or not the Arbitration panel appointed is independent and impartial.  

This Judgment gives us a brilliant opportunity not only to analyse various aspects relating to independence and impartiality of the Arbitration Process but also a privileged opportunity to analysis other landmark judgments on the issue.  

Factual Matrix

Before analysing judgment passed in BBNL case, it is essential to have a close look of brief factual matrix concerning this case:

• On 05.08.2013, BBNL floated tender inviting bids for a turnkey project for GPON and Solar Power equipment. 
• United Telecoms Limited (UTL) was selected as L-1 bidder. 
• On 30.09.2014, Advance Purchase Order was issued.
• On 03.01.2017, UTL asked for the appointment of Arbitrator to decide the dispute.
• On 17.01.2017, CMD, BBNL appointed a Sole Arbitrator.
• During the Arbitration Process, Supreme Court passed Judgment in TRF Limited, holding that Managing Director cannot appoint an arbitrator as he is one of the parties to the Arbitration. 
• Because of TRF Limited Judgement, BBNL prayed to Sole Arbitrator that given TRF Judgment, he is de jure unable to perform the function of Arbitrator.  Accordingly, he should withdraw as Arbitrator and let High Court appoint substitute Arbitrator. 
• On 21.10.2017, this Application was rejected by the Sole Arbitrator.
• On 28.10.2017, BBNL filed Petition under Section 14 and 15 before Delhi High Court seeking the appointment of a substitute Arbitrator. 
• On 22.11.2017, this Petition was rejected by Delhi High Court primarily on following grounds:
• BBNL who appointed Arbitrator is estopped from raising a plea that such Arbitration cannot continue; and
• UTL filed Statement of Claim without objecting/ reserving any objection about the appointment of Arbitrator.  This would amount to express agreement in writing, therefore, wavier as per Section 12(5) of the Act.

Thus this challenge before Supreme Court.

Issue

The issue before the Supreme Court concerns the correct interpretation of Section 12(5) of the Act and whether High Court was right in rejecting Petition filed by BBNL seeking the appointment of substitute Arbitrator. 

Main Contentions of BBNL

• BBNL relied upon Section 12, 13 and 14 of the Act and TRF Limited Judgment as this Judgment is a declaration of Law and would apply to the case and this render appointment of Sole Arbitrator as void-ab-intio.
• There exist no express agreement in writing subsequent to dispute between the parties, which is a pre-condition.

Main Contentions of UTL

• Section 12(4) provides for challenging appointment basis those grounds only which came to the knowledge of a party post appointment of Arbitrator.
• Section 13(2) provides that such objections should be taken within 15 days after knowing the circumstances which lead to challenging.  Since these time frames were not adhered to, therefore, Petition is liable to be rejected.

Held

The Supreme Court allowed the appeal and set aside the judgment passed by Delhi High Court, thereby, terminating the mandate of Sole Arbitrator.  Apex Court further directed Delhi High Court to appoint substitute arbitrator with consent of both parties. 

Evaluation of Three authority judgment on the issue

We are taking a small digress in this article before coming back to the ratio and reasoning of this BBNL judgment. Interestingly, the Supreme Court passed three decisions on this issue in 2017, v.i.z; 

• Voestalpine Schienen GmbH v. Delhi Metro Rail Corporation Ltd passed on February 10, 2017 (Vestolpine);
• Trf Ltd. v. Energo Engineering Projects Ltd passed on July 03, 2017 (TRF); and
• HRD Corporation v. GAIL (India) Limited passed on August 31, 2017 (HRD).

So we are dealing with these judgments in seriatim. 

In Voestalpine case, brief factual matrix relates to awarding of contract on 12.08.2013 by DMRC to Voestalpine who is an Australian entity. The dispute arose between the parties due to withholding of amount, the imposition of LD and banning to deal with Voestalpine for six months on the part of DMRC. The arbitration clause was not in dispute which provides that in case of dispute, DMRC shall forward five names of proposed Arbitrators from the list maintained by it to other side to choose from.

However, this was not acceptable to Voestalpine as this list consists of retired and serving DMRC employees, employees of PSUs and Government. Basis amendment of Section 12 of the Act a Petition was preferred for the appointment of Arbitrator under Section 11(6) r/w Section 11(8) of the Act.  

Therefore, the issue before the Supreme Court is whether or not such list in violation of amended Section 12 of the Act.  Supreme Court observed that in 2015 law was amended basis recommendation of law commission keeping neutrality of Arbitrator to the core.  Supreme Court further observed that given non-obstante 12.5 clause if an appointment is not in confirmation with this core principle, the Court can interfere with such nomination. 

The Court observed that Seventh Schedule is based on IBA’s international guidelines which are based on best practices of across jurisdictions.  Finally, Court didn’t interfere in view of the fact that DMRC agreed and forwarded a complete list of 31 names which gives an ample choice to Petitioner to choose from including persons not even in employment and/or relationship with DMRC.

In TRF Limited case (supra), short facts relate to Energo issuing a purchase order against which TRF had submitted an Advance Bank Guarantee and PBG.  After a dispute arose between the parties, TRF approached Court under Section 9 seeking stay against encashment and for challenged Arbitration Process.  At the same time, main contention to challenge appointment of Arbitrator is that Under Section 12(5) of the Arbitration and Conciliation (Amendment) Act, 2015 (3 of 2016) read with the Fifth and the Seventh Schedules to the amended Act, the Managing Director had become ineligible to act as the arbitrator and as a natural corollary, he had no power to nominate. 

Two crucial issues came up for consideration, viz.

1. Whether High Court was correct in holding that a person who is barred to act as an arbitrator due to the operation of law cannot nominate also, and
2. Plea of statutory disqualification can be raised during Section 11 adjudication.  

While accepting such disqualification can be raised during Section 11 adjudication, Apex Court observed that if the nomination of an arbitrator by an ineligible Arbitrator is allowed, it will tantamount to carrying on the proceeding of arbitration by himself.  Therefore, the Supreme Court held that once an Arbitrator has become ineligible by operation of law, he cannot nominate another as an arbitrator. 

In HRD Corporation (supra), besides dealing with the applicability of Section12 (5) and Seventh Schedule also deals with the interplay of Section 12 and 14 which we are going to discuss afterwards in this article.  Briefly stated, a factual matrix, in this case, relates to HRD Corporation’s being successful in GAIL’s tender process, which ultimately resulted in an Arbitrable Dispute.  This dispute is fourth in a series of Arbitration between the parties. 

There were two issues involved in this case,

1. Appointment of one of the Arbitrator is challenged on the basis that he was advisor to GAIL in another unconnected matter, hence, barred under item 1 of Seventh Schedule, and
2. Appointment of co-arbitrator is also challenged on ground of item 16 of Seventh Schedule as he passed award in a previous arbitration between the same parties. 

Supreme Court, while upholding the continuity of both Arbitrators held that Appointment as an Arbitrator is not a “business relationship”; hence, no prohibition to continue as an Arbitrator.  Nor is the delivery of an award providing an expert “opinion” makes an Arbitrator ineligible.  Court further held that since these challenges are contained in Schedule five, therefore, any challenge to appointment can be gone into only after the Arbitral Tribunal has given an Award.

Reasoning & Ratio in BBNL judgment

After going through the ratio of above three referred cases, Supreme Court summarises the chronological legal position to deal with such a situation.  For easy reference following is the recapitulation of the ratio of BBNL judgment, in which the Supreme Court considered two plausible situations:

Where the challenge is on independence and impartiality of Arbitrator

1. Once a person is approached for possible appointment as an Arbitrator, he should give his honest disclosure in writing (as per Sixth Schedule) clearly stating possible circumstances which can create justifiable doubts as to his independence and/or impartiality (as per Fifth Schedule).
2. If there are circumstances which warrant a challenge, the same should be done on the ground of justifiable doubts [as per Section 12(3)] subject to Caveat of Section 12(4).  In other words, these reasons should be posted appointment and not those which was known earlier to a challenging party.  
3. This challenge should be made within 15 days after becoming aware of the constitution of the Arbitration Panel or after becoming aware of any compelling circumstances [as per Section 13(2)].
4. Arbitral Tribunal must first decide on the first challenge.  
5. If the decision is in the negative, the tribunal shall continue the proceedings and make an award.  
6. An application for setting aside such an award can be made post-award only by way of an application under Section 34 of the Act. 

De jure inability of an Arbitrator under Section 12(5)

Supreme Court observed that Section 12(5) is a non-obstante clause which should be read in conjunction with Seventh Schedule. These two provision deals with the ineligibility of an arbitrator with the only exception to be a waiver of applicability of Section 12(5) by an express agreement in writing.  So in nut-shell, this situation is dealt with by the Supreme Court in the following manner:

1. A person falls within any of the categories set out in the Seventh Schedule, is as a matter of law, ineligible to be appointed as an Arbitrator.
2. The only exception is by a waiver created by express agreement in writing.
3. Otherwise, his mandate automatically terminates, and another arbitrator shall substitute him under Section 14(1).  
4. If there is any such controversy as to whether such person becomes de jure unable to perform his functions as such, aggrieved party has to apply to the Court to decide on the termination of the mandate. 
5. Apex Court also observed that as a matter of law, 12(5) must be contrasted with Section 4 of the Act.  In other words, Court mandated that in such situation deemed waiver provision as provided under section 4 of the act will be applicable only if express agreement in the wiring between the parties is made after dispute having arisen between them.

Conclusion

Supreme Court, has touched upon the most sensitive cord of Arbitration Process which goes to the root of the Arbitration mechanism.  In a well-articulated manner, Supreme Court provided much-needed clarity to various provisions of the Act, mainly Section 4, 12, 13, 14, Schedule 5, Schedule 6 and Schedule 7 on the one hand and three landmark judgments (as stated earlier) on the other hand. Thus providing us with a ready reckoner judgment to deal with all plausible scenarios.  Of course with the noble objective to maintain impartiality and independence of Arbitration mechanism to keep the faith of people and contesting parties alive in the system.

The Author is a Corporate Commercial Litigator and is a Litigation Partner in Kapil Sapra & Associates (“KSA”).   KSA is a full service corporate commercial law firm with offices in New Delhi & Bangalore.  KSA focuses its practice in all major areas of corporate and commercial laws.

[Read the Judgment below]